H and H
[2003] FMCAfam 31
•9 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & H | [2003] FMCAfam 31 |
| FAMILY LAW – Children – specific issues order – cultural and religious issues – child lives with his mother and has regular contact with his father – father wants child to attend religious school – mother wants child to attend a state school – attendance at a religious school likely to influence child’s identity towards the same religion – child should not be exposed to a religious education inconsistent with the values that he will be exposed to day by day. EVIDENCE – Expert opinion evidence – anthropological and sociological evidence – Lebanese/Australian community in western suburbs of Sydney described – patriarchy common to both Lebanese Muslim and Lebanese Catholic Maronite communities – order that child attend a secular state school. |
Family Law Reform Act 1995
Family Law Act 1975, ss.60, 65, 68
Evidence Act 1995 (NSW), ss.36–80
Native Title Act 1993, s.146
In the Marriage of Horman [1976] FLC 90-024
In the Marriage of N and H [1982] FLC 91-267
Sanders and Sanders (1976) FLC 90-078
Torrens and Flemming (1980) FLC 90-840
Goudge & Goudge (1984) FLC 91-534
Paisio (1979) FLC 90-659
Hanrahan v Hanrahan (1972) 19 FLR 262
Plows v Plows (1979) FLC 90-712
K v K (1979) FLC 90-680
Firth v Firth (1988) FLC 91-971
Hornsey (1998) Fam CA 7
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Vlug and Poulos (1997) FLC 778
Re G: Children’s Schooling (2000) FLC 93-025
Makita (Australia) P/L v Sprowles, 52 NSWLR 705
HG v R (1999) 197 CLR 414
| Applicant: | R H |
| Respondent: | J H |
| File No: | PAM2966 of 2002 |
| Delivered on: | 9 April 2003 |
| Delivered at: | Parramatta |
| Hearing dates: | 10 and 11 February 2003 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Wilson |
| Solicitors for the Applicant: | Takchi & Associates |
| Counsel for the Respondent: | Ms L. Judge |
| Solicitors for the Respondent: | Navado Solicitors |
ORDERS BY CONSENT
That all prior parenting orders are discharged.
That the child J E H (“the child”) born 9 November 1999 live with the applicant mother.
That the applicant mother have responsibility for the day to day care, welfare and development of the child when he is in her care.
That the respondent father have responsibility for the day to day care, welfare and development of the child when he is in his care.
That the mother and father are jointly responsible for making decisions about the child’s long term care, welfare and development.
That both parties are restrained from removing the child from the state of New South Wales without the prior written consent of the other parent.
That both parties shall advise the other parent within forty-eight hours of any change in the child’s residential address. Both parties are restrained from changing the child’s usual place of residence beyond the Sydney metropolitan area without the other parent’s prior written consent.
That both parties shall provide the other party with mobile phone number and land line number at which telephone contact with the child can take place.
That the father have contact with the child as follows:
(a)Each alternate weekend starting 6.00 pm Friday and concluding 6.00 pm Sunday.
(b)Each alternate Saturday starting at 9.00 am and finishing at 6.00 pm. This order is discharged once the child starts school.
(c)On Father’s day from 9.00am until 6.00 pm.
(d)Once the child starts school, for one half of each school holiday period, in the event that the parties do not otherwise agree with the father during the first half of school holidays.
(e)By telephone no less than three times a week, which calls shall be initiated by the mother.
(f)From after school (or day care) on the child’s birthday until the start of school or (or day care) on the day following the child’s birthday in years ending in an even number.
(g)From after school (or day care) on the day following the child’s birthday until the next morning in years ending in an even number.
(h)On Christmas Day.
(i)On Easter Sunday.
(j)At such other times as the parties agree.
That for the purpose of contact the father shall collect the child from the mother’s home and return him to her home at the end of contact. Except, at the end of Saturday contact the mother shall collect the child from the father’s home at the end of contact.
That alternate weekend contact is suspended during school holidays once the child starts school.
In the event that contact falls on the weekend that includes Mother’s Day or the mother’s birthday, the father’s contact shall end at 9.00 am on the mother’s birthday or Mother’s Day, whichever is applicable. The mother shall facilitate make up contact at another time agreed between the parties.
In the event that Eid coincides with a period of contact the contact is suspended for two days of Eid nominated by the mother.
After a period of school holiday contact, the father’s weekend contact shall resume on the first weekend after school has resumed if he has had contact to the child during the first half of the holidays and on the second weekend if he has had the care of the child during the second half of the holidays.
That both parties shall keep the other informed about significant sporting, schooling, social and educational events that involve the child and provide the other with copies of school reports and other important documents relating to the child’s welfare.
That both parties shall ensure that they keep the other parent informed about any significant sickness or ill health that the child suffers and provide a medical certificate if available. Other than any emergency procedure, the mother shall give the father at least fourteen days notice of any planned medical procedure.
IT IS FURTHER ORDERED
That each of the parties be entitled to obtain directly from any school attended by the child or any health or welfare professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child.
That the child is to receive his education at a state school agreed upon by the parties.
That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
That all exhibits tendered in these proceedings be returned at the expiration of one calender month unless an Appeal is lodged.
That all outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM2966 of 2002
| R H |
Applicant
And
| J H |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for parenting orders. The proceedings related to the parties’ only child J E H (“the child”) born 9 November 1999.
The applications
R H (“the wife”) started these proceedings when she filed her application for parenting orders on 8 April 2002. Prior to the start of the hearing she filed an amended application on 30 January 2003. It identified the orders sought at trial. In essence, she proposed that J live with her and that he have contact with his father each weekend. Importantly, her amended application included an application for an injunction to restrain the father from taking the child to church during contact. During the second day of the hearing she abandoned that part of her application.
J H (“the husband”) filed an amended response on 31 January 2003. It identifies the orders sought at trial. As the hearing progressed the parties reached agreement on many aspects of contact, residence and specific issues. The husband continued to press his application for an order, “That the parties sign all documents and do all things necessary to ensure that the child is enrolled in and educated in a Catholic Maronite school within the Sydney Metropolitan area”.
Otherwise the additional issues that required adjudication were:
·Mid-week contact.
·Contact on Palm Sunday.
·If Eid falls on a contact weekend whether the father should have make up contact.
The agreements reached between the parties are substantial. In essence, the agreed orders provide that J lives with his mother and will have extensive and regular contact with his father. Contact changeover arrangements are agreed and both parties anticipate a cooperative approach to contact changeover and flexibility to occasional changes in contact arrangements.
The evidence
When the proceedings started the issues that required adjudication were substantial. Hence, the affidavit material covered matters that included evidence that addressed the entirety of the disputed issues.
The mother relied upon:
·Her affidavit sworn 30 January 2003 and her oral testimony.
The father relied upon:
·His affidavit sworn 30 January 2003 and his oral testimony.
·Affidavit of Dr Paul Tabar sworn 3 February 2003 and his oral testimony.
·Affidavit of D B sworn 30 January 2003.
·Affidavit of K P sworn 30 January 2003.
·Affidavit of J B sworn 29 January 2003.
A number of photographs and Christmas cards became exhibits. These depicted J’s baptism and Christmas celebrations. Minutes of order jointly proposed by the parties were tendered[1]. The intent of the orders is apparent. With counsel’s consent the orders have been adapted using simpler language.
[1] Exhibit C
The mother’s circumstances and proposals
R H was born in Lebanon on 9 September 1968. She migrated to Australia with her parents when she was about twelve months old. She has lived in Australia since then. R’s family is a close one and she sees her parents and/or siblings at least every two days. At separation in February 2002 she and J moved in with her parents. R and J now live in a rented unit in S Road, Merrylands. She works as an accounts payable clerk four days a week. Whilst she is at work J attends day care. R does not work on Wednesdays and spends that day with him.
R actively supports J’s relationship with his father. She agrees that contact should take place every weekend. However, she is concerned that J is unsettled when he returns from contact, which behaviour she attributes to the child’s routine being different in his father’s care. After contact J is over tired and unusually for him, puts on tantrums on the days immediately following the end of contact. Although over tired she has difficulty getting him to sleep. At separation she made a commitment to J’s father that before she would arrange babysitting, she would ask him to take care of J. She has been true to her commitment. Occasionally the father has been available and babysat J for her, frequently he is unavailable. Until J moved to Kellyville at the start of contact R delivered J to his father at his father’s workplace.
R is Muslim. It was important to her and her parents that she marries in accordance with Islam. In March or April 1998 she and J participated in a Muslim marriage ceremony and then on 12 July 1999 were married in accordance with the Marriage Act. The authorised celebrant was a Sheik. Upon discovering that she was pregnant the parties’ different faiths was again the subject of discussion between them. R did not want J to be formally involved with Islam or Catholicism. Initially J agreed. However, his position changed and he threatened to leave her unless she agreed that J was baptised in the Catholic Maronite faith. Against her better judgment she agreed to his request. When he was 8 weeks old J was baptised in his father’s faith.
R kept this event secret from her parents. Correctly, she anticipated that they would be terribly upset that J was baptised. Their expectation was that he would be reared in accordance with Islam. During a visit to her parents R forgot to remove J’s christening cross that he usually wore. Her parents discovered the cross and she was forced to acknowledge his baptism. Because of this for the next two months her parents refused to see her or J. Fortunately their love of their daughter and grandson enabled them to resume their relationship.
R believes that J should determine his own religious identity when he is mature enough to understand the ramifications of the decision he makes. This will coincide with his mid-late teen years. So that his decision is an informed one she will teach him the essential tenets of Islam and when she believes he is old enough give him the opportunity to attend Mosque. She agrees and expects J to expose J to his Catholic Maronite faith and take him to church for special occasions. Once J starts school, she wants him to attend a non-denominational state school. Presently, she works at Chullora and if three years from now she still works for the same employer, her plan is that J attend a state school near to her place of employment. Thus she will be able to deliver him to school in the morning and collect him in the afternoons. Demographically, Merrylands is located in part of Sydney’s western suburbs that includes a significant Lebanese/Australian community. Within the region there are a number of Mosques and Sydney’s largest Mosque is only a short distance away. There are Islamic schools attended by large numbers of Lebanese/Australian children and also Catholic Maronite schools attended by large numbers of Lebanese/
Australian students.
R’s family celebrates Eid and Christmas. During 2002 she fasted during Ramadan, something she does not usually do. Christmas in her family is a secular event celebrated without religious ritual. R has never attended a Mosque and there are aspects of Islam that she does not observe, for example she takes alcohol and does not cover her head in public.
The father’s circumstances and proposals
J H was born on 6 March 1970. He was born in Australia and has lived here all of his life. Shortly after separation he started living with his partner K P. They live in a two bedroom house that they rent at Northmead. Because contact takes place every weekend K is included in the contact. J has his own bedroom and is supervised by J and/or K throughout contact. During contact J ensures that J has the chance to visit his cousin A, paternal grandparents and extended family.
J works at H Corporation, North Parramatta as a driver/salesperson/
installation officer. He works between 8.30 am and 5.00 pm five days a week. Occasionally, he works overtime. Shortly he and K are moving into a new four bedroom home at Glenwood. This is where contact will take place in future. The home is completely appropriate and will provide a comfortable place for the child during contact.
J is a Catholic Maronite. He attended junior school at O a Catholic Maronite school at H. When he was about 10 years old he was expelled because of his bad behaviour and not doing homework. He completed primary school at G and attended G High School for years 7 to 10. His attitude to school was poor and he regularly absconded. He regrets his lax attitude to education and deeply regrets that he was placed last in the entire year when he completed his school certificate year. With hindsight he believes that the discipline provided at O was appropriate and gave him the opportunity for academic achievement, which he considers, was not similarly available to him in the state system.
J was strongly motivated that J be christened as a Catholic Maronite. He pressed the issue with R and eventually obtained her consent to the baptism, but not to the child receiving an education in a Catholic school or taking further sacraments. On 9 January 2000 J was baptised at O Church at H. Although J wanted R to tell her parents that the baptism had occurred, he acknowledges that she was afraid to do so. He agrees that R was concerned that upon discovering about the baptism her parents would disown her and J.
Until he was about 28 years old J usually went to church on Sunday at O. Thereafter his attendance at church lessened. He continued to attend important celebrations such as Easter, Christmas and Palm Sunday. Whilst married he attended at other times without R’s knowledge. These attendances were infrequent. He explains his religion thus, “The Maronite sect is a subset of Catholicism with a strict set of practising rules and beliefs”[2]. During cross examination it was clear that J had little understanding of this descriptor other than acknowledging he is a Catholic Maronite. He explains his approach to J’s education thus,
My culture expects that the child follow my religion. My culture requires that the child follows the footsteps of his father … Lebanese culture has it that the religion and the surname of the child follows that of the father. I feel that it is in the best interests of my child that my child is educated in a Catholic Maronite school, so that he may be educated in the Catholic Maronite faith. J is christened. I am concerned that if my son is not educated in the Catholic Maronite faith, he will find it difficult to explain to his peers and friends within the Lebanese/Australian community, exactly how it is that he can be christened as a Catholic Maronite, but yet not allowed to be educated in a Catholic Maronite school or attend a church[3].
[2] Paragraph 2 Husband’s affidavit
[3] Paragraph 31 Pages 18 & 19 Husband’s affidavit
J respects Islam and acknowledges the importance of J being with his mother during Eid. He agrees that J must understand his mother’s faith and approves her notion that she will expose J to Islam and should she wish to, he is comfortable that J attend Mosque. Because of his love for her, J agreed that their marriage be conducted under the auspices of Islam. His decision put him into conflict with his family and it took them some time to accept his decision and marriage. J agreed that his decision was inconsistent with the strict observance of his religion, as is his decision to live in a defacto relationship with his Anglo/ Australian partner. There were other examples where he conceded his approach to the practice of his faith did not accord with its tenets. For example, weekly attendance at mass and his suggestion that R contemplate an abortion during her second pregnancy, before she miscarried.
Relevant Law
Australia is a multicultural society represented by a diverse range of cultural and religious groups. It is the home of a diverse range of families who share a wide range of beliefs and traditions. This diversity stems from the policy of multiculturalism. The rationale behind this policy is that the contributions made by different religious and cultural groups in society will “enrich” Australian society.[4] It is grounded upon respect and cooperation.[5]
[4] Ann Marie Lanteri ‘Cultural Conflicts in Family Matters” presented at the 9th Family Law Conference 3-7 July 2000.
[5] Ann Marie Lanteri, Ibid.
The role, structure and importance of families differs across and within different cultural and religious groups. This diversity of family life and structures in Australia has often raised concerns of how family law can accommodate this diversity when determining outcomes that affect families.[6] Indeed, Dickey recognises that in a multicultural society, like Australia, it is extremely hard to determine the best interests of a child. This is because individuals from different cultural and religious backgrounds hold different opinions on what is best for children generally or for particular classes of children.[7] Likewise, Parkinson, asserts that one of the most difficult task for a court is deciding how a child should be raised when the case involves parents holding different ethnic or cultural values.[8] Nevertheless, numerous cases reveal real attempts by the courts to address this difficulty. In the Marriage of Horman [1976] FLC 90-024; In the Marriage of N and H [1982] FLC 91-267; Sanders and Sanders (1976) FLC 90-078; Torrens and Flemming (1980) FLC 90-840; Goudge & Goudge (1984) FLC 91-534.
[6] As discussed in the paper by Ann Marie Lanteri Ibid. See also Abela & Borg “Ethnic Diversity and Children’s Rights: Recognition of Culture in Law and Practice with particular reference to the Family Law Court of Australia” presented at the Third National Family Law Conference 20-24 October 1998 Sofitel Hotel Melbourne.
[7] Dickey, A. (2002) Family Law,(4th edition) Lawbook Company, Sydney at 402
[8] Parkinson, P, P S & Behren (1999) Australian Family Law in Context (2nd edition) LBC Sydney at 587
Prior to the Family Law Reform Act 1995 the Family Law Act 1975 was silent about culture. The issue tended to arise under the guise of acceptance of a child in a particular set of living arrangements. Commonly the cases concerned child related disputes where one parent was Aboriginal and the other white. It was often argued in these cases that a child’s interests are best met by being raised in an environment that is respectful of the child’s cultural heritage. Since the enactment of the Family Law Reform Act 1995, this kind of argument has been strengthened.
In addition to other reforms the Family Law Reform Act 1995 introduced section 68F(2)(f). This section requires the court to take into account when determining what parenting order is in the child’s best interests “the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people or Torres Strait Islanders) and any other characteristics of the children that the court thinks are relevant.” Section 68F(2)(f) was influenced by the United Nations Convention on the Rights of the Child,[9] which stresses the importance of taking into account the traditions and cultural values of children for their development.[10] Section 68F(2)(f) is the only section in the Family Law Act that makes reference to cultural considerations.
[9] For a discussion see B and R (1995) FLC 91-534
[10]See Abela & Borg, Supra n.6 at 7. See also Articles 20 and 30 of the United Nations Convention on the Rights of the Child.
There is great debate over the meaning and concept of culture. However, it is almost universally accepted that culture is learnt, rather than biological. Therefore, culture can be defined as “consisting primarily of the symbolic, ideational, and intangible aspects of human societies. The essence of a culture is not its artifacts, tools, or other tangible cultural elements but how the members of the group interpret, use, and perceive them. It is the values, symbols, interpretations, and perspective’s that distinguish one people from another in modernized societies; it is not material objects and other tangible aspects of human societies. People within a culture usually interpret the meaning of symbols, artifacts, and behaviours in the same or in similar ways.”[11] A different but complimentary formulation of the concept is described in Human Organizations[12] “as the learned and shared behaviour of a community of interacting human beings” (p. 169).
[11] Banks, J.A., Banks, & McGee, C. A. (1989). Multicultural Education. Needham Heights, MA: Allyn & Bacon
[12] Useem, J., & Useem, R. (1963). Human Organizations, 22(3).
At first blush it is difficult to understand why s.68F(2)(f) uses different language for Aboriginal and Torres Strait Islander people rather than incorporating all ethnic groups and migrant groups within Australia. However, the reference in the section to Aboriginal and Torres Strait Islanders appears to be an attempt by parliament to rectify the inequality often experienced by these groups in the community.[13] The question, however, is whether this worthy aim has had unintended consequences for people from other cultural backgrounds. Abela and Borg[14], while seeing s.68F(2)(f) as a positive move towards considering cultural issues, argue that the section is “defective” in considering different cultural groups. They write “it has the potential to be culturally divisive and demonstrates a white Anglo-Saxon cultural elitism that fails to reflect the multicultural nature of our society.”[15] They argue that s.68F(2)(f) portrays Australian society as being comprised of only two different cultural groups, "white Anglo-Saxons" and "Aboriginal and Torres Strait Islanders", and does not appreciate the extent of cultural diversity within Australia.[16]
[13] Ann Marie Lanteri, Supra n. 4.
[14] Abela & Borg Supra n.6 at 1.
[15] Abela & Borg, Ibid
[16] Abela & Borg Ibid
Culture and religion are often intrinsically related. Cases involving religion often involve one of the parents arguing that being brought up in a particular faith is fundamental to child’s best interests. However, the cases show that the courts try to avoid this kind of argument and religion is only considered relevant when it is detrimental to the child.[17]
[17] Parkinson, P & Behren, Supra n.8
In Paisio (1979) FLC 90-659, the Full Court affirmed that it is not the judicial role to prefer one religion over another, saying: “there may be many paths to the top of the mountain. Some would say there is only one, some would say there is no path. Some would say there is no mountain. It would be presumptuous, vain and temerarious for a judge to make a finding of fact on such an issue. It is not for the court to say which religion gives the best benefits.” See also Hanrahan v Hanrahan (1972) 19 FLR 262; Plows v Plows (1979) FLC 90-712; K v K (1979) FLC 90-680.
In Firth v Firth (1988) FLC 91-971, the Full Court acknowledged that in the past the courts have adopted a neutral position with respect to religion and have been careful not to prefer one religion to another or to discriminate against freedom of religion as the Constitution, by virtue of section 116, provided this guarantee. However, while affirming that it is not generally for the courts to prefer one religion to another they stated that: “in determining questions of custody and access, depending upon, as they do, determination of what is in the best interests of the child, or what future proposals put forward by the parties to a suit will best promote the welfare of the child, it is permissible for a court to examine the tenets and practices of a particular faith. For the purpose of deciding these questions a judge must take into account and weigh them with other factors. If a court then decides that it is detrimental to the child to adhere to such practices this does not constitute breach of section 116.”
Post Family Law Reform Act decisions concerning religion are few. The most significant case appears to be Hornsey (1998) Fam CA 7. This case concerned a father who sought limited contact to his three children. A central issue was the children’s capacity to enjoy contact in circumstances where they and their mother were members of the Brethren and the father had withdrawn from their religion. The Full Court declined to reconsider its decision in B and B: Family Law Reform Act 1995 (1997) FLC 92-755. The father acknowledged that the “religion was not on trial” and hence the Full Court said it was unnecessary for the court below to analyse the Brethren’s practices. That is because the evidence made it clear that inevitably the children and their mother would continue their faith. By inference the issue only became relevant if there was a challenge to the children’s continued practice of their faith or an application for orders (for example a residence application) because of the effect it would have on the children.
Subsequent to the Family Law Reform Act 1975 a parent who has a residence order does not necessarily have the same bundle of “rights’ as a parent who had an order for custody. This is because of the narrow definition of “residence” in s.64B(2)(a). Section 61C provides that each parent has parental responsibility subject to any orders. Section 61D provides that a parenting order confers parental responsibility on a person only to the extent identified in the order. Unless there was also an order for joint guardianship a custody order carried concomitant rights that meant the custodial parent was generally able to decide matters such as the childs participation in sports, religion and schooling: Vlug and Poulos (1997) FLC 778. These issues can now be the subject of a specific application pursuant to s.64B(6). Unfortunately because s.61C gives each parent parental responsibility both parents are able to make far reaching decisions about their children that are inconsistent with each other. In the absence of agreement an inconsistent outcome will be avoided by ordering that one party have sole responsibility for a tranche of long term decisions or by making a specific issues order that addresses the particular disagreement. Re G: Children’s Schooling (2000) FLC 93-025.
Specific issues orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle. Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive.
In deciding the arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (supra).
Expert evidence concerning the Lebanese/Australian community in the western suburbs of Sydney
Dr Paul Tabar prepared a report in which he gave expert evidence about the social and cultural impact on J within the wider Lebanese/Australian community of his parents’ proposals viz his religion and education. Dr Tabar is Associate Professor at the Department of Social and Behavioural Sciences, School of Humanities, Notre Dame University, Beirut and also Associate Researcher at the Centre of Cultural Studies, University of Western Sydney. He has a Bachelor of Arts (Honours) degree from Macquarie University and is completing his Doctorate of Philosophy also at Macquarie. Dr Tabar’s career spans twenty years during which time he has taught Arabic, anthropology and sociology at a number of universities in Sydney, the United States and Beirut. His work has been published extensively and he co-authored a text Kebabs, Kids, Cops and Crime: Youth, Ethnicity and Crime in Sydney[18]. In recent years he has written extensively about youth, ethnicity and identity among male Arabic speaking youths in western Sydney.
[18] Pluto Press with Collins J, Noble G and Poynting
Dr Tabar’s research methodology included widespread consultation with members of the Lebanese/Australian community in western Sydney. This took him into homes where he interviewed young people and their parents. He was given access to schools, secular and religious. This information supplemented his knowledge drawn from his own experience derived as a resident within this community, an Arabic language teacher, social and community worker.
Dr Tabar described the Lebanese/Australian community thus;
“The Lebanese/Australian community is basically characterised as being patriarchal and strongly religious. It is divided into two major religious groups, Christians and Muslims. The majority of Christians follow the Maronite Catholic creed and the majority of Muslims are either Sunni or Shiite Muslims. What makes their religious identity extremely significant is the fact that they invest it with political and social interests. As a result, religious factors are utilised to generate a system of exclusion and inclusion to ensure the closure of each group in the face of the other. For these reasons, inter-religious marriages are extremely rare among the Lebanese Australians. Instead, the vast majority tend to marry from within its own religious group. On the other hand, religious affiliation is inextricably linked with the system of patriarchy that a father is still considered to be the most important figure in the household. This is the case within all faiths, both Muslim and Christian, in the Lebanese community. Though not the sole decision maker in the house, his words still carry more weight than that of his spouse or children. His supremacy in the family is most obviously reflected in the fact that his children automatically take on his family name and are raised in his religious faith. This patriarchal system is not only endorsed within the confines of the family, but it is also a system which is defended by the community itself in all its social and religious organisations.
If at a later stage, J chooses to follow the Muslim faith of the mother, other Muslims in the community will have a serious problem accepting him as a real Muslim because his biological father is a Christian Maronite. The power of the patriarchal system is such that a family name of the biological father and his religious affiliation will always stick at the forehead of his offspring. According to the social/religious beliefs of Australian Muslims, a child will be stigmatised if he/she follows the religious faith of his/her mother and ignores that of his/her father. The Muslim community will not seriously accept someone proclaiming to be a Muslim at a time when his biological father is a Maronite Christian. Surely, in pure theological terms, people can change their religion of their father, but socially they are not expected to do so because of the entrenched beliefs of patriarchy. And if they convert to a faith other than that of their father, they will always be considered as outcasts. Having made this analysis, I do not want to claim that if a child in the position of J grows up as a Maronite Christian, he will absolutely face no problems. On the contrary, the rule of religious closure, which requires that a person should not marry from outside his/her religious group, will generate some problem of stigmatisation for a child in the position of J caused by both Christian and Muslim Australians. Depending on the context the Maronite’s will sometimes hold the fact that the mother of the child and the position of J is a Muslim against him and consequently, the belonging of a child in the position of J to the Maronite community would somehow be attenuated. Muslims, on the other hand, will categorically deny a child in the position of J the right to Islam because of the child’s father’s faith. However, in the case of a child in the position of J, the rule of patriarchy will ultimately counterbalance the effect of having a mother belonging to a different faith and will safely place such a child in the position of J amongst his Maronite co-religionists.”
Because of the absence of empirical research the mother’s counsel submitted that Dr Tabar did not have sufficient expertise to comment upon the Lebanese/Australian communities norms and sociology. In Makita (Australia) P/L v Sprowles 52 NSWLR 705, Heydon J reviewed the current law in relation to the admission, nature and use of expert opinion evidence. The NSW Court of Appeal was concerned with ss.76-80 Evidence Act 1995 (NSW). These are in similar terms to ss.76-80 Evidence Act 1995 (Cth). Having completed a comprehensive analysis of the common law, Heydon J summarised the current law taking into account the effects of the Evidence Act/s. The current position he said is as follows: “In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise."
During his oral testimony Dr Tabar conceded that his research and opinions are not informed by empirical research. Whilst that is often a valid criticism, the nature of this witnesses evidence is not undermined by its absence. There are a few anthropological studies of the Lebanese/Australian community. The available research derives from participant observation, which is extensive consultation and interaction with the community. Dr Tabar demonstrated an intimate knowledge of the particular community, and I am satisfied that he is qualified to express an opinion in relation to it. My findings are limited to the Lebanese/Australian community located in the western suburbs of Sydney. While aspects of the evidence may have wider application, the detailed sociological evidence derives primarily from participant studies conducted in a specific region. Absent participant information, aspects of the opinion lack foundation. In family law proceedings findings anthropological or sociological findings as a general rule are inadmissible in other proceedings, whether between the same or different parties. This type of evidence is important yet rarely available. Obtaining it can be expensive and the pool of available experts is limited. For litigants of limited means obtaining it may be beyond their means. In native title legislation the Native Title Tribunal may receive evidence given in other proceedings. That way expensive research can be used in associated litigation. This is possible because of the provisions of s.146, Native Title Act 1993. Section 146 is set out below:
“S146: Evidence and findings in other proceedings In the course of an inquiry, the Tribunal may, in its discretion:
(a) receive into evidence the transcript of evidence in any other proceedings before:
(i) the Tribunal; or
(ii) a court; or
(iii) a recognised State/Territory body; or
(iv) any other person or body; and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any report, findings, decision, determination or judgment of any court, person or body mentioned in any of subparagraphs (a)(i) to (iv) that may be relevant to the inquiry. “
Courts exercising jurisdiction under the Family Law Act 1975 are increasingly required to determine matters that have significant cultural nuances and ramifications. It seems to me that the Family Law Act should include a similar provision to s.146 of the Native Title Act 1993. In like cases, the court could use reliable research presented in other cases as well as have regard to findings made in a court exercising the same jurisdiction. Potentially this would maximise the benefit of this type of evidence at virtually no additional cost systemically.
Dr Tabar emphasised that second generation Lebanese Australian young people must resolve the extent to which they feel Australian and the extent to which they feel Lebanese. Describing it as “the concept of hybridity” he observed that these young people use their Australianness to strategically break down parental constraints and values that are Lebanese. Beyond their home, if identified by the community as Lebanese they feel Lebanese. For these young people their identity is confused, in essence one moment they are Lebanese and one moment Australian. A challenge for this generation is acceptance by the dominant culture and its expectations of a minority culture.
Within the community there are more Christian Maronite schools than there are private Islamic schools. To a greater extent than the Christian Maronites, the Lebanese/Australian Muslim community educates their children in the state school system. Hence, state schools located within particular suburbs in western Sydney can have a substantial percentage of students who are Lebanese/ Australian Muslims. Dr Tabar’s evidence disclosed that Wiley Park Girls, Punchbowl, Greenacre, Campsie and Canterbury High Schools are predominantly Muslim, with between 75-90 per cent of the students being Muslim. In schools where the dominant religion and ethnic group is so strong, his experience is that children who do not conform to the dominant group are highly likely to be stigmatised. On the playground a Lebanese Australian child who is not identified by his father’s religion is likely to be treated as an outcast by other Lebanese Australian children, whatever their religious denomination.
Commenting on J’s circumstances Dr Tabar agreed that the child would be less likely to be subjected to the victimisation that I have referred to if he were educated in an open and diverse environment, free from the narrow and stereotypical pressures he identified. Not surprisingly, he emphasised that if a child of a mixed religious marriage is brought up to understand and respect both religions this indicates a much better approach hence outcome for the child.
Determining the child’s best interests
Ordinarily the religious beliefs of a parent and proposed religious observance by their children are not the subject of detailed evidence. That is because courts refrain from making orders that define the religious upbringing of a child and only intervene when it is necessary to do so in order to promote the best interests of the child. Initially the evidence concerning religion was included because of the injunction sought by the mother concerning the child’s attendance at church when with his father. It remained relevant because of the father’s application that the child be enrolled in a religiously orientated school which outcome the mother resists. The discussion of religion is also important because of its relevance as a determinant of cultural values and norms within the Lebanese Australian community and the potential impact upon the child if a decision is made inconsistent with the community’s belief systems. Neither party suggested that their religion should be preferred because it alone is the one true religion. Both are able to respect religious diversity, but take a different approach to the degree of exposure to religious beliefs that the child should have and the point at which his active religious life, if any, should commence.
The mother’s resistance to the child’s enrolment at O is primarily because the child will be inevitably exposed to and included in Catholic religious education. In spite of his evidence attempting to minimise the extent of religious education and participation within the school, I am satisfied that J will be substantially inculcated into active participation in the Catholic Maronite faith should he attend that school. The school promotes itself as a Catholic school, for example by its name. The students are placed there predominantly for the purpose of its religious and cultural educational facilities. Whilst the school may respect diversity the evidence suggests that it is culturally and religiously homogenous; that is Lebanese/Australian catholic.
An important consideration for me has been the extent to which Dr Tabar’s evidence of the cultural significance of religion within the Lebanese/Australian community reflects the parties’ experiences and the child’s likely exposure to those who hold firmly the views identified by Dr Tabar. These parents have already taken significant steps, which puts them outside the narrower value system maintained within the Lebanese/Australian community. Firstly, they selected a partner from a different religion. Then, the husband participated in a marriage ceremony conducted by a Sheik. The husband gave up regular attendance at mass and participation in the sacraments. The mother never went to Mosque. Christmas celebrations, although extravagant, were secular. The mother agreed to the child’s baptism and thus established his religious identity as a Catholic Maronite. Significant as that event is the effect of both parties’ evidence is that there was no agreement that J would take further steps for example, receiving communion or confirmation until as a young adult he decided himself to do so. Without that further commitment, I accept the thrust of the mother’s case that the baptism was symbolic rather than definitively determining this baby’s religion.
J does not live within the Lebanese/Australian community and his partner is Anglo Australian. The evidence does not suggest that she is Catholic nor that religious observance of J’s faith is an important or meaningful part of their lives. J draws important values from his religion such as belief in God, respect for his fellow human beings and participation in religious ritual on important religious days. He respects and loves his parents and hence their opinions are important to him. The evidence reveals that within his family the patriarchy of which Dr Tabar gave evidence has softened. In his own childhood the influence of his father was not sufficiently strong to keep J within the Catholic Maronite education system. Nor interfere with his marriage to a Muslim and then relationship with an Anglo-Australian woman.
Similarly, R’s experience of patriarchy suggests that it is less influential in her family than the cultural norm. Although distressed by it, her parents have accepted J’s baptism. They did not force her active observance of Islam, nor regular attendance at Mosque. It appears likely that they are aware that their daughter has a considerably more liberal lifestyle than observance of strict religious and cultural morays would permit. Hence, within these extended families it appears that adult second generation Lebanese/Australians have not only established their own identity within the Australian community, but their parents’ attitudes have softened from the patriarchal and religious exclusivity prevalent within parts of the Lebanese/Australian community. Within this extended family J has the opportunity to be enriched by his Lebanese heritage, exposure to his Islamic and Catholic heritage all lived within the context of a culturally diverse community.
Pivotal to J’s capacity to benefit from this culturally rich environment is the importance of his education. Putting this child into a school where he is likely to be victimised because of his religious observance or lack of it will mar his childhood and is highly likely to undermine his opportunity for academic achievement. For this reason, he ought not to be exposed to a school community that will mock or reject him because he does not practice his father’s religion. Nor, in my opinion, should he be exposed to a religious education inconsistent with the values that he will be exposed to day by day. It is potentially a cause of conflict that a child to be increasingly inculcated into a religious faith that differs markedly from the religious observance by the parent with whom he lives. This is not to say that there is a presumption that the child should have the religion of the parent with whom he lives. Rather, that it is preferable that a child not be placed in a position of conflict with its parent unless there are other reasons associated with the child’s welfare that make this outcome necessary. For example, a child may have been substantially raised in one faith that its parent later abandons. Or an older child may decide to profess a religion that promotes his or her belief system and which it would be plainly unreasonable for his or her parent to reject.
Ultimately, the mother’s inclusive approach finds favour with me for this child. By carefully selecting an appropriate non-government school J need not be exposed to the narrow application of patriarchy from a peer group. His extended family’s inclusive approach to their second generation adult children satisfies me that within the family J is unlikely to be stigmatised for not actively and strictly adhering to his father’s religion. Eventually J may choose to practice a religious faith, but that is a decision that he will be able to make in his own time when he is competent to do so.
The issue of mid week contact is considerably less complex. The parties have agreed that J will have contact with his father every week until school starts. Do his interests demand that between now and then he also have mid week contact? J leads a busy life cared for by his mother, his father, grandparents and also four days at daycare. Although keen to observe reasonable routine, J’s routine is clearly not as structured as R’s. Hence, when J returns from contact he is unsettled and disorganised. More frequent contact is likely to exacerbate that disruption. While I have no doubt that father and son enjoy their time together, adding a few additional hours to contact is unlikely to materially influence the quality of their relationship. Both parents have worked hard to ensure that J has a good relationship with his father and both are determined that it will continue to be nurtured. Because of the amount of time that J will spend with his father on weekends, it is important that he has time with his mother when he is settled and back into his routine. That will contribute to his relationship with his mother and to his overall sense of security and stability. For the same reasons, I do not consider that make up contact for that which may be forgone during Eid should be ordered. Eid lasts for two days and is most likely to fall during the week. The probability that it will occur on the weekend is slight and over J’s childhood the number of days of lost contact will be small indeed. I will not order make up contact.
Contact on Palm Sunday would enable J to potentially celebrate a holy day with his father. Traditionally his family celebrates this day by attending Mass together and then in a larger family celebration. Palm Sunday occurs just before Easter Sunday. J concedes that religiously and culturally it is not as significant as Easter Sunday. The parties agree that J will have contact on Easter Sunday and R anticipates that J will take their son to Mass that day. In order that they do not overload their son with too many inconsistent religious messages she does not want too many Catholic ceremonies following after each other. That is so that exposure to their religions remains balanced and hence not too confusing for J. I think her approach is sensible and is consistent with the broad and inclusive approach to culture and religion the parties previously embraced. Neither of them expect or want J to embrace their religion so completely that it governs every aspect of his life. They have not done so and it would be most confusing for their son if he were expected to “do as I say not as I do”. When he is old enough J will decide the level of adherence he has to any religion. Between now and then his parents will need to assist him with answers to questions concerning their different religions and its ramifications for him. They are both committed to his welfare and ideally placed because of their own life experiences to equip him with credible information that he will understand and share with others. Having seen the manner in which they addressed their parents unhappiness at their inter religious marriage I have real confidence in their capacity to ensure that J, their families and the communities within which he lives will accept him for who he is.
Ordinarily a court will not make orders that decide where a child will attend school until the child is about to start school. That is because many relevant circumstances may change. For example, where the child lives, his or her educational capability and need for special educational facilities. In this case the issue can be decided because the essential facts are unlikely to change. Both parents will benefit from certainty about the style of education J is to have and together can plan which particular state school he will attend. This must take into account where his mother works and the assistance she needs with before or after school care. Ideally he will attend a school close by to her home or place of employment. Because balance in religious education and peer influence is important, the state school should be one that is religiously diverse. For the same reasons that I have not made an order in favour of the child attending a Catholic Maronite school the parties must ensure that the state school does not create a bias in favour of Islam as against the fathers Catholicism. It is possible that the parties may be unable to reach agreement, but I consider this unlikely. The risk of disagreement is outweighed by the benefit to the child that his parents have decided which school he should attend. This will increase their satisfaction that they have actively participated in this important parenting decision and makes it highly likely that both will be equally motivated to ensure that J enjoys his education. Intellectually the mother is more likely to be involved in homework and the like. The father’s genuine motivation that his son do well at school must be acknowledged and given a proper basis so that he, the mother and child recognise his involvement as an equal decision maker from the start.
For these reasons I am satisfied that the orders I make are in the best interests of the child.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 9 April 2003
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