L and O
[2005] FMCAfam 223
•11 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & O | [2005] FMCAfam 223 |
| FAMILY LAW – Whether husband should be prohibited from taking children to Jehovah's Witness meetings – whether risk of harm to children – whether children’s relationship with husband affected – whether wife's role as primary carer affected. |
| Family Law Act 1975 |
| Evers v Evers (1972) 19 FLR 296 In the marriage of Paisio [1979] FLC 90-659 Re G (Children's schooling) (2000) FLC 93-025 |
| Applicant: | L |
| Respondent: | O |
| File Number: | MLM 576 of 2004 |
| Judgment of: | Phipps FM |
| Hearing date: | 22 April 2005 |
| Date of Last Submission: | 22 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 11 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cantwell |
| Solicitors for the Applicant: | Footscray Community Legal Centre |
| Counsel for the Respondent: | Mr Lovering |
| Solicitors for the Respondent: | Coleman Lawyers |
ORDERS
The wife's application for an order that the husband be prohibited from taking the children of the marriage to Jehovah’s Witness meetings until they are ten (10) years old is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 576 of 2004
| L |
Applicant
And
| O |
Respondent
REASONS FOR JUDGMENT
Introduction
This application concerns the two children of the parties to the marriage, G born 28 February 2001 and D born 7 July 1999. The only issue between the parties is whether an order should be made, "That the husband be prohibited from taking the children to Jehovah’s Witness meetings until they are ten (10) years old”.
Orders were made by consent on 4 October 2004 that the children reside with the wife and for the husband to have contact, which includes every second weekend from 5.00pm Friday until 5.00pm Sunday. Included was an order that the husband be prohibited from withholding his consent to any medical treatment including blood transmissions for the children when they are in his care. The residence and contact orders reflect arrangements that were already in place between the parties.
Evidence
The parties met at school and were boyfriend and girlfriend from that time. They were married on 27 June 1997 and separated on the
12 January 2003. The husband returned and resided under the same roof with the wife and children until 28 August 2003.
The husband has since remarried. He resides with his wife and her two children. His wife is a Jehovah's Witness. The husband became interested in the Jehovah's Witness religion and he is now a committed member. He attends a two-hour Jehovah's Witness meeting on most Sundays. When his two children are on contact with him they also attend the meeting. There have been some exceptions, when the children were ill, and on occasion when the husband and his family visited Geelong.
The mother describes herself as Catholic, although not strongly religious. She has been baptised and made her first Communion and confirmation in the Catholic Church. She attended a Catholic Secondary School for six years and then did a further final year in a government secondary school where she met the husband. She attends Catholic Church services at Christmas and Easter. She attends baptisms, first Communions, confirmations, weddings and funerals for family and friends at the Catholic Church. The husband attended with her while they were boyfriend and girlfriend and during the course of the marriage. The wife is a god parent to a child of each of her brother and her sister.
The husband and wife were married in a Catholic Church. Prior to the marriage they met the priest and discussed their impending marriage and the prospect of children. The wife says, and the husband agrees, that at the meeting the husband agreed that any children born to the marriage would be brought up in the Catholic faith.
The wife says that her mother, the maternal grandmother, is strongly religious and attends Catholic Church services every Sunday. The children spend a considerable amount of time with the grandmother and often attend church with her.
The husband described the two-hour meeting. About 100 people attend, of whom 30 or 40 are children of all ages. The children sit with their parents. They have things to draw on. The husband said they are neither encouraged nor discouraged to listen or participate.
The first hour of the meeting is a public discourse where the speaker talks of an issue such as something concerning the family or a world issue. The speaker uses the Bible to provide counsel about the topic addressed. The speaker will talk of guidance from the Bible to deal with the particular problem.
The second hour takes an article from the “Watchtower” publication and uses it as the basis of a forum. A person at the front of the meeting will read a paragraph and others would then make comments about how they felt about the paragraph.
The wife said she learnt in February 2004 that the husband was taking the children to Jehovah’s Witness meetings. She told him she did not approve. He told her that it was his judgement call and "don't you trust me?".
The husband had invited the wife to attend the meetings to see for herself, in particular a three-day meeting that was held in the Rod Laver arena. The wife has said she would attend, but she would not go on her own. The circumstance did not arise and she did not attend. The husband had given the wife some written material which she had glanced at and returned after about two weeks.
The wife said that the husband's grandparents had died. Both children had asked her about them. She described one occasion when her son was in bed and asked when he would see them. This was in the context of the Jehovah's Witness belief in reincarnation. She said she told him that he was not going to see them again and he said that was not so, that they were going to come back. She thought this confusing for her son.
The wife said that she maintained some contact with the husband's mother but that the husband sees her rarely. She considered it important that children see their grandparents.
The wife said that the older child has said that he did not like going to the meetings but she said he would go because he wants to be with his father. Her concern is that the children will become confused and she is concerned that the Jehovah’s Witness religion excludes outsiders.
The wife said that she wanted her children to be able to grow up to make their own choices. Her concern is that the children will become absorbed into the Jehovah’s Witness faith, will have outside influences excluded and will not make their own decisions. The wife is sincere in her fear that the children will be adversely affected by any exposure to Jehovah’s Witness teachings.
The husband is a committed Jehovah's Witness. He believes that life must be based on the teaching of the Old Testament, that to be saved a person must become a Jehovah's Witness, that a person who is not a believer can be reincarnated but if they do not accept Jehovah they will not live again.
The relationship between husband and the wife is a good one. Since separation they have had no difficulty in agreeing about the arrangements for the children's care. The children reside with the wife and have regular contact with the husband. The only issue between them is the children's attendance at Jehovah’s Witness meetings. The husband has consented to an order that he would not prevent the children having a blood transfusion if needed. He said that he would refuse a blood transfusion himself but it would be for the children to make their own decision when they are old enough.
Law
The application is to be decided in accordance with the relevant sections of the Family Law Act 1975 (Cth). Section 60B sets out the objects and principles of PartVII of the Act. Section 65E provides that in deciding whether to make a particular order, a Court must regard the best interests of the children as the paramount consideration. Section 68F sets out matters which must be taken into account in determining what is in the best interests of the children.
The issue is what is in the best interests of the children. Courts do not decide whether one religion is preferable to another (see Evers v Evers (1972) 19 FLR 296, In the marriage of Paisio [1979] FLC 90-659). This is not a case where one parent is alleging that the other parent has such unbalanced and extravagant beliefs that any exposure to the parent would be damaging to the children (see cases referred to in Paisio at 78, 515). The wife encourages and promotes the children's relationship with their father.
Discussion
The relevant paragraphs of s.68F(2) of the Family Law Act and the considerations in relation to each are these:
The children’s wishes
The only evidence of children's wishes is the wife's evidence that the older child has said that he does not like going to the Jehovah's Witness meetings. She immediately qualified this by saying that he goes because he wants to be with his father. Given his age, this evidence has little significance.
The nature of the children’s relationships
This is a significant consideration in this case. It is important to the father, in his relationship with the children, that they participate in his life. He is a committed Jehovah’s Witness. An important part of his life is attending the Sunday meetings. It was put to the husband in cross-examination that on the alternate Sundays when the children were with him, he need not attend the meetings. Given the strength of the husband's commitment to his beliefs, this could affect his relationship with the children. If he did this, he would be leaving out something he regards as important in his life every second weekend, and the children would be left out as well.
It is not possible to separate the father's beliefs from his relationship with the children. If he was prevented from taking the children with him to the Sunday meetings it would affect his relationship with them and their relationship with him.
The children’s attendance at Jehovah's Witness meetings is very important to the wife. Her concern is that it will affect the children, they are confused by what they hear and that they will be drawn into the Jehovah’s Witness religion and away from others.
It is relevant in that the mother is the children's primary carer. The reality of the children residing predominantly with one parent has to be taken into account. It is in some ways similar to the position with children's schooling (see Re G (Children's schooling) (2000) FLC 93-025 at 87,416). If the children's primary carer is genuinely concerned that an activity may have an adverse effect on the children, that can affect the carer’s relationship with the children and their relationship with her. It is something which must be taken into account.
The children will be exposed to the father's Jehovah's Witness beliefs not just at the Sunday meetings. The father is committed to his beliefs. They influence the way he lives. The children will not have a normal parent-child relationship with him if they are not exposed to and continue to learn about his beliefs. Since they have a very good and close relationship with him, it is inevitable that they will be exposed to his beliefs and learn about them.
Consequently, the matters that concern the mother would only be partially alleviated by an order which prevented the husband from taking the children to the meetings. Conversely, an order which prevents the children from attending with the father at one of his regular activities, and which is important to him, will mean that they are spending time with a parent who is not, to the extent that he is not going to the meetings, or the children are not going with him, living his normal life.
The need to protect the children from physical or psychological harm caused by abuse, ill treatment, violence or other behaviour
A consideration put forward by the wife is that the children may become confused and that they may be excluded from those outside the Jehovah's Witness religion. Therefore she fears harm to the children.
The wife's case is not put as one where there is a clash between the desire of one parent to have the children brought up in the beliefs of one religion, and the other parent wanting the children brought up in the beliefs of another religion. She wants the children to be able to make their own choice. The risk the wife fears is that attendance by the children at the Jehovah's Witness meetings will so influence them towards that religion that they will be unable to make their own choices when they are old enough to do so.
The husband is not attempting to exclude the wife from the children's lives or exclude her influence and that of her family on the children's religious beliefs. He has shown his desire that the children be free to make their own decisions. He consented to an order which restrains him from preventing the children having blood transfusions, notwithstanding his own belief, that the Bible forbids blood transfusions. His reason for this is that he wants the children free to make their own decisions in due course.
The wife is the children's primary carer and the principal influence in their lives. The husband does not wish to change this relationship. The risk that the children might suffer harm by becoming confused or being unduly influenced by attending the meetings is slight.
Conclusion
The evidence does not show a significant risk to the children, as feared by the wife, in attending the Jehovah's Witness meetings. The major influence in the children's lives is the wife. The husband does not wish to exclude her influence or her beliefs from the children. He is not opposed to the children attending Catholic Church services whether with the wife or with their maternal grandmother. He is very committed in his own beliefs, but while he wants his children to learn about them, he has shown that he recognises their right to make their own decisions.
The children's relationship with their father would not develop to the extent that it could if they were unable to attend the Jehovah's Witness meetings with him. Either he would not go when he was caring for the children or he would go while they were cared for by someone else, and so lose that time with them. They would not participate with their father in an activity which is a significant part of his life.
These considerations show that it would not be in the best interests of the children for there to be an order that the father cannot take them to Jehovah's Witness meetings. Consequently, the wife's application for such an order is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
Date: 11 May 2005
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