S and B

[2008] FCWA 36

[2008] FCWA 36

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	S and B [2008] FCWA 36
CORAM	:	MARTIN J
HEARD	:	25 FEBRUARY 2008
DELIVERED	:	20 MARCH 2008
FILE NO/S	:	PT 603 of 2005
BETWEEN	:	S Applicant Father
AND
B Respondent Mother
Catchwords:

FAMILY LAW - children - parenting orders - [Religious Faith] - injunction re children's religious observance

Legislation:

Family Law Act 1975 - s 60B, s 60CA and s 60CC

Category: Not Reportable

Representation:

Counsel:

Applicant Father	:	Self Represented Litigant
Respondent Mother	:	Self Represented Litigant
Independent Children's Lawyer	:	Ms J Taylor

[2008] FCWA 36

Solicitors:

Applicant Father	:	Self Represented Litigant
Respondent Mother	:	Self-Represented Litigant
Independent Children's Lawyer	:	Independent Children's Lawyer

Case(s) referred to in judgment(s):

N and N (1981) FLC 91-111

[2008] FCWA 36

1 The proceedings between the parties were commenced by an application filed by

the father on 16 January 2007, seeking parenting orders, including the parties have shared care of their children, a boy, now aged nine years, and a girl, now aged seven years. The father also sought extensive orders regarding the children’s continued involvement in [the religion]. The mother’s response was filed on 4 October 2007. She proposed that the children live with her and spend time with the father as agreed between the parties.

2 The parties agreed from the outset that they should have equal shared parental

responsibility.

3 The mother sought further orders defining the parenting arrangements, including

that both parties be restrained by injunction from discussing, and/or denigrating or allowing others to discuss or denigrate each parent’s faith with the children or in the presence of the children. She also sought that the father be restrained by injunction from discussing and/or denigrating, or allowing others to discuss or denigrate, the mother’s leaving of the [religion], or her lifestyle, with the children or in the presence of the children.

4 The mother then proposed that the father spend time with the children on the

[festival day], which I am informed is the only significant religious festival of the
[faith], from 4:00 pm to the commencement of school the following day.

5 The proceedings had been adjourned to the Judge Track on 17 September 2007, and listed for a trial before me on 25 February 2008, with an estimated hearing time of two to three days.

6 To the parties’ great credit, having regard to their background, poor relationship

and the major differences of opinion between them, and to the credit of the independent children’s lawyer, who greatly assisted in resolving their dispute, the parenting orders between the parents were largely agreed.

7 On 29 January 2008, I made orders, by consent, almost entirely finalising the

proceedings.

8 In summary, until further order, the parties were to have equal shared parental

responsibility for the children, and the children were to live with the father in accordance with the father’s work schedule which was set out in a roster annexed to the Minute of Proposed Orders. The children were to live with the mother at all other times. On Christmas Day commencing in 2007, and each alternate year thereafter, the father was to spend time with the children on Christmas Day from 2:00 pm to Boxing Day at 6:00 pm, and in each intervening year from Christmas Eve at 4:30 pm to Christmas Day at 2:00 pm. Commencing 2007, the children were to spend time with the mother from Christmas Eve at 4:30 pm to Christmas Day at 2:00 pm, and each intervening year thereafter from Christmas Day at 2:00 pm to Boxing Day at 6:00 pm.

9 The mother was to spend time with the children on each of the children’s

birthdays from 10:00 am to 6:00 pm on a non school day and on a school day, from
after school to the commencement of school the following day.

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10 Among other days, the father was to spend time with the children for half of

Easter. These orders were agreed even though [members of the religion] do not celebrate birthdays, Christmas or Easter. Both parties were to spend holiday time with the children.

11 A number of other parenting orders were made by consent, including:

• the mother be restrained by injunction from discussing and/or denigrating, or allowing others to discuss or denigrate, the father’s faith with the children or in the presence or hearing of the children;

• the father be restrained by injunction from discussing or denigrating or allowing others to discuss or denigrate the mother’s belief, the mother’s leaving of the [religion] or her lifestyle, with the children or in the presence or hearing of the children.

12 There were only three issues remaining to be determined by me:

• Whether the father was to spend time with the children, as he proposed, on the [festival day] being from 4:00 pm to the commencement of school on the following day.

The mother opposed the making of this order.

• Whether an order should be made as proposed by the mother that both parties be restrained by injunction from instructing the children in any religious belief or faith, or taking the children to any religious meetings, church or gathering associated with any religious belief.

The father opposed the making of this order.

• Whether the father’s time with the children should commence from the time that the father finished work at 5:30 pm on some of his work days – three in each five week period – or whether his time with the children should commence from 9:00 am on the next morning as proposed by the mother.

There was also an issue as to whether the father’s time with the children should conclude at 7:00 pm on the day the children are returned to the mother, as the father proposed, or 5:30 pm as proposed by the mother.

13 The parties, having largely reached agreement and consent orders having been

made, the issues for trial were enormously reduced, so at the time of making the orders on 29 January 2008, I ordered that each party simply file and serve a statement setting out the reasons for the orders sought by each of them at trial, rather than the usual trial requirements.

14 I annex a copy of the statements filed by each party.

15 The independent children’s lawyer’s position, in summary, was:

1. It was not in the children’s interests for an order to be made as proposed by the wife in relation to restraining the parties from instructing, or involvement, in their respective religious beliefs.

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There was no reason for the children not to spend time with their father at the [festival day].

16 The independent children’s lawyer’s position was that each party should have

the right to involve the children in their respective religions while with them, and the children then make their own decision when they grow older. At times, when this puts direct pressure on the children, for example, when it comes to celebrating birthdays or Christmas at school, the children should be permitted to be involved in these activities, which are low key and in which they are involved, in any event, while with their mother.

2. It was probably in the children’s interests to spend time with their father on the days he concludes work, rather than the next morning as proposed by the mother.

17 The orders already agreed involve the children in a substantial shared care arrangement, but not equal shared care.

Background

18 The father is 35 years old and a [technical employee for a large company], where

he has worked for a number of years. The mother is 31 years old and engaged in home duties. The parties were married on 5 October 1996, and finally separated in January 2004. They were divorced in October 2005. There are two children of the marriage, [K], born [in] May 1998, and [L], born [in] February 2001. The mother has repartnered, and lives with [Mr R]. The couple have a child, [J], aged about 15 months.

19 The proceedings between the parties commenced by an application filed by the

mother on 9 February 2005. Interim parenting orders were made on 11 February
2005, and the proceedings between the parties flared up again in early 2007.

20 On 30 April 2007, it was ordered that the children be separately represented at

the further hearing of the proceedings and an independent children’s lawyer was appointed. A single expert, [a social worker], was appointed on 15 May 2007. A significant issue at the time was that the mother had expressed concern that the child [L], then aged six years, had been sexually abused by the father. A Form 4 was lodged by the mother and referred to the Department for Child Protection. The single expert’s conclusions as to whether the child was at risk of abuse of any kind from any person were, at p 25 of his report dated 21 June 2007:

“Both parents presented equally irresponsible in acting violently towards each other, and failing to shield the children from their mutual aggression.”

21 [The single expert]’s conclusion, at p 28 of his report, was:

“In summary, I do not think [L] is at risk of sexual abuse from the father, as proposed by the mother. I do think there is a risk to [L] however, of being pressured to redefine her relationship with [the father] as abusive, in order to accommodate to the mother’s apparent conviction this is so. The

[2008] FCWA 36

damage this would undoubtedly cause in [L]’s relationship with her father presents as an avoidable social and emotional harm, she is at risk of experiencing in the present context.”

22 The Department for Child Protection, having investigated the position to some extent, decided to take no further action.

23 Neither party, nor the independent children’s lawyer, suggested that this issue

was now relevant to my determination, but it does form part of the relevant
background of the poor relationship between the parties.

24 The background in relation to the family and religious issues was distinctly set out by the single expert in his report, at pp 6 and 7, where he said:

“It was the mother's decision to end the marriage; which the father wanted to continue with. She cites physical, sexual and emotional abuse as the reasons for leaving the relationship. The father denies these allegations, conceding only to mutual assaults perpetrated by both parents to each other following the separation.

Both parents were practicing members of the [religion] during their marriage and together contributed to educating their children according to its principles. The mother continued practicing the [faith] and bringing up the children within its teachings after the separation for a period; until her attitudes changed. She now regards the [religion] as an oppressive system with adverse effects on people; particularly women and children; recruiting them into subservient roles in life. It appears the mother's attitudes regarding the religion have been influenced by her relational experiences with [the father], whom she describes as a typical example of a believer, and whose actions towards her she considers have oppressed and constrained her.

Following the separation the children have lived with the mother and had liberal contact with the father; residing with him about 16 days every 35 day period that contact has been organised within.

Both parents in this matter present as powerfully passionate about the wellbeing of the two children [K] and [L]. The children's presentation indicates they have benefited from being the recipients of well intentioned care; both appearing to me to be confident, expressive, mentally alert and healthy young persons with a lot of potential. This, despite having been exposed to events capable of eliciting trauma in children their ages.

The dispute the couple have asked the Court to settle, is largely shaped by the disparate religious beliefs that have developed between the mother and father subsequent to their separation in 2004. Prior to this and for a period afterwards the parents were united in their faith as [their religion] and collaborated in educating their children accordingly. Following the separation and the mother's subsequent change of attitude, the father had cause to become concerned that the mother was celebrating the children's

[2008] FCWA 36

birthdays, Christmas and Easter; in contravention of the[religious doctrines]. This prompted [the father]'s Application to the Court requesting increased contact with the children. His intention was to have them in his care for periods including their birthdays, Christmas and Easter so as to protect them from exposure to a culture that he regards as vain and sectarian; directly opposed to the principles he wishes to instil in the children.”

25 The single expert went on to say, at p 8:

“My assessment of the present arrangements is that the children are safe from physical harm in the care of either parent. There is however, some evidence that the children are aware of the dispute between their parents and distressed by this and that they are making efforts to accommodate to both parents' expectations and please them both; which is unremarkable for children in their situation. The fervour with which both parents are pursuing this matter presents as an expression of mutual commitment to the children's wellbeing. The dispute over religious beliefs in particular appears to be causing the children confusion and unnecessarily complicating their straight forward hopes to get on with both parents, confident that this is okay with both.”

26 As to the arrangements for the children, at p 10, the single expert said:

“[The father] lives in his own home in [the southern suburbs]. Living nearby are his grandmother and maternal aunt who are willing to support him with care of the children during periods they are living with him. He works fulltime doing shifts as a [technical operator with his company]; a half hour drive away from home. His commitment to the children is evident in all aspects of [the father]’s life, including his work and living arrangements.”

27 In his summary of key issues regarding the father, [the single expert] said:

“[The father] presents as a good parent who has the children’s best interests at heart. I felt confident that he would be well placed to provide for their physical and intellectual needs, and most of their emotional and social needs also. The only concern evidence in the father’s attitudes to parenting is the strict compliance with [religious and] cultural prescriptions that he has hitherto insisted on for the children. His concession in our conversation, that the principles of his faith; being love and respect, could continue to be honoured event though some cultural expressions of these were not complied with; presented as a possible way for [the father] to resolve the anxiety that has fuelled his dispute with the mother regarding the children’s wellbeing.”

28 In relation to the mother, the single expert said, summarising the key issues

regarding her:

[2008] FCWA 36

“[The mother] presented as very passionate about the children's well being and adept at providing for their physical, intellectual and some of their social and emotional needs. The mother appears to have suffered traumatising experiences in her relationship with the father whom she regards as a dangerous and threatening person who poses a serious risk to the wellbeing of the children and herself. It is regrettable that the mother regards the father's ways of relating to her as the expression of the teachings of the [religion], which the parents have educated the children to be a part of. In the post separation context, the mother's opposition to the father and his — and until recently the children's — religion, renders very difficult the fulfilment by the mother of her responsibilities to promote the children's relationship with the father and respect their religious beliefs, and cultural expressions of these.”

29 [The single expert] interviewed the children, who agreed that they would like to

live equally with both their parents. [The single expert] discussed the children’s
religious beliefs with them, and at p 20 he said:

“An interesting part of the interview with the children was the discussion of their religious beliefs and whether or not they thought it was okay to celebrate birthdays and Christmas. [K] said he did not know why the [religious group] would not celebrate Christmas, and [L] said:

I know!

I asked her to explain, and she said:

Because in the bible there they don't have celebrations.

To which [K] interjected:

No, that's just the bible tricking you [L]!

I found this expression by [K] interesting, because it surprised me that a boy raised most of his life to have religious faith, would make such a statement. This part of my interview with the children contributed to my concern that the mother's way of relating to them is denigrating of the beliefs they have hitherto respected and cherished. I acknowledge the mother's decision to no longer subscribe to the [faith], and can equally support her resolve to no longer promote it in her children. However, I consider the children have a right to have their ideas respected; and I am concerned this may not presently be occurring.”

30 In conclusion, [the single expert] recommended that the children spend equal time with each parent, and each other.

[2008] FCWA 36

Relevant factors

Legislative provisions and relevant factors

31 Section 60B of the Family Law Act, relating to children and the principles underlying it, provides:

(1)

The objects of this Part are to ensure that the best interests of
children are met by:

(a)	ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and
(b)	protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)	ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)	ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)

The principles underlying these objects are that (except when it is
or would be contrary to a child’s best interests):

(a)	children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(b)	children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)	parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)	parents should agree about the future parenting of their children; and
(e)	children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

[2008] FCWA 36

32 Section 60CA provides in deciding whether to make a particular parenting order

in relation to a child, a court must regard the best interests of the child as the
paramount consideration.

33 Pursuant to s 60CC(1), subject to subsection (5), in determining what is in the

child’s best interests, the court must consider the matters set out in subsections (2) and
(3).

34 Having regard to the narrow ambit of the dispute, there is no need in determining these proceedings to refer to all the relevant factors, or to any factor at length.

35 Section 60CC(2) of the Family Law Act 1975 provides that the primary considerations determining what is in the child’s best interests are:

(a) the benefit to the children of having a meaningful relationship with both of their parents;

36 It was not in dispute that it is to the benefit of the children to have a meaningful

relationship with both their parents, nor that the children do have such a meaningful
relationship facilitated by their shared care arrangements.

(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

37 This was not relevant to the issues remaining in dispute, however, I have no

reason to doubt the conclusions of the single expert, and the Department for Child Protection. It is clear that any risk to these children is that of being torn between two much loved parents and their differing beliefs and lifestyles.

38 As to the additional considerations set out in s 60CC(3) of the Act:

(a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views;

39 The single expert reported that the children agreed their preference was to spend

equal time with both parents in a shared care arrangement. The single expert found
this reassuring, having regard to the parents’ attitude to each other.

40 It was not suggested that any views expressed by the children were relevant to

the issues in dispute, having regard to their present ages. I have referred to the single expert’s concern about influence being brought on the children. I consider it likely that the children’s views in relation to religious observance will become polarised in the not too distant future, since, unlike the parties when they were young, they are now being freely exposed to two different belief systems in their respective homes, and extended family circles.

(b)	the nature of the relationship of the children with:
(i) each of the children’s parents; and

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(ii) any other persons (including a grandparent or other relative of the children);

41 The children have a close and loving relationship with both parents, and good relationships with other family members.

(c) the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent;

42 Obviously, both parents’ attitude to the other has being affected by their stance

on religious issues, and the mother’s concerns about possible sexual abuse and the past allegations of family violence. The single expert said that his perception, in June 2007, was that the mother would not promote the relationship between the children and their father, and the father would find it difficult to do so.

(d)

the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:

(i)	either of their parents; or
(ii)	any other child or other person (including any grandparent or other relative of the children) with whom they have been living;

43 In the event the children spend the previous evening and night with the father, as

proposed, on some additional occasions over the term of his roster, the children will then be separated a little more from their mother and their half-sibling (and [the step father]). If they do not spend this additional time with the father, they will have slightly less time with him. Either result is likely to have little effect on the children, having regard to the short time involved.

(e) the practical difficulty and expense of the children spending time with and communicating with each parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;

44 It was not suggested this was an issue.

(f)  the capacity of: 

(i) each of the children’s parents; and

(ii) any other person (including any grandparent or other relative of the children);

to provide for the needs of the children, including their emotional
and intellectual needs;

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45 It is apparent that both parents are well able to care for all the children’s needs.

Unfortunately, both have not always been capable of caring for the children’s emotional needs in that the children have, to some extent, been caught up in their parents’ conflict.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the Court thinks are relevant;

46 The children are nine and seven years of age. The relevant aspect of their

background is that they had been brought up by both parents in the [particular] faith, until the mother left the father. While with the father, the children strictly observe the tenets of the [faith] - its lifestyle, including proselytising, attending quite lengthy meetings in the evenings during the week and Sunday mornings, and not observing birthdays and Christmas.

47 While with the mother, the children observe a Christian lifestyle, and do celebrate birthdays and Christmas.

(i) the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;

48 Both parents are caring, competent and loving, with appropriate attitudes to the

responsibilities of parenthood. I accept both parents are genuine, and are not unreasonable in their respective concerns about the other parent’s lifestyle and beliefs. However, the position was well summed up by each of them by the single expert, at p 30 of his report:

“Both parents present as people who subscribe to their views with vehemence and conviction and there is a bitter dispute ongoing between them. It appears neither one has felt sufficiently removed from the heat of their conflict to take a step back, recognise the children's interests for a relationship with the currently non-resident parent and take action to privilege and promote this.

The above comments on this term of reference are influenced by my perceptions that the mother regards the father as a threat to herself and the children; and with good reason. No matter what the provocation, it is difficult to conceive as reasonable, the father's actions in punching the mother in the head in front of their children, or smashing her windscreen with a baseball bat outside his house, while they are watching from inside.

Likewise, the mother's actions in attending the father's home during the children's access with him in the company of her father and brother and with the children present supporting by her presence and silence on the matter, her family's actions in assaulting [the father] in front of his children; present as those of a person with little appreciation of or regard at the time, for the children's best interests. The mother also appears to be

[2008] FCWA 36

actively denigrating the children's religious beliefs; which is causing them

unnecessary and preventable stress and confusion.”

(j) any family violence involving the children or a member of the children’s family;

49 While there have been allegations about family violence in the past. These

issues are not now relevant to my determination, apart from providing more reasons
for the poor relationship between the parties.

(k)

any family violence order that applies to the children or a member of the children’s family, if:

(i)	the order is a final order; or
(ii)	the making of the order was contested by a person;

50 I believe there is no family violence order, although this issue was not discussed.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children;

51 While this would be preferable, I consider it unlikely that whatever orders I

make are more or less likely to lead to the institution of further proceedings. I consider it unlikely there will be further proceedings unless the parties’ circumstances significantly change.

(m) any other fact or circumstance that the Court thinks is relevant;

52 These will be referred to in my conclusion.

53 The provisions of s 60CC(4) are not relevant to this determination.

Conclusion

Religious issues

54 The parties’ respective positions in this regard, have been well summed up by each of them and by the single expert in his report.

55 Both parties very strongly held positions are that it is in the best interests of the

children not to be brought up and instructed in the other parent’s religious beliefs and practices. The father believes that it is very much in the children’s interests to be brought up in, and observe the [faith] in which both he and the wife were involved during their relationship. While he seems to accept that it inevitable that while living in the mother’s home the children will not observe his faith, he would like them to observe the teachings of the faith at school, in not celebrating birthdays, Christmas and being involved in civic, ceremonies such as Anzac Day. The mother’s position is that, if the children are involved in the [faith], that this will have a very deleterious effect

[2008] FCWA 36

on them, and probably on their relationship with her. She has been disfellowshipped
herself.

56 This is in the context the parties have already agreed to the children spending time with each parent on festival days not recognised by the [faith].

57 Clearly, both parties have, in different ways, attempted to promote their faith,

religious beliefs and principles to the children – the father by continuing strict observance of his religion while the children are with him, with the children taking part. The mother, while having a Christian lifestyle, feels so strongly that the [religion] is likely to be a malevolent force in the children’s lives, that she is challenging its beliefs directly to the children, which obviously must cause them some confusion. The mother is also concerned the children will be socially isolated, although the father denies this has been the case for him.

58 There is freedom of religion in Australia, and it is not acceptable for me to

promote the merits of, or criticise any person’s religious beliefs over that of another. However, religious practices may obviously be relevant if they are likely to have a negative effect on the children’s best interests. An example would be if the children needed [medical treatment] and a parent refused to permit this to occur, despite strong medical advice. A serious issue arises, as in this case, when the parents of children follow different religions, and cannot agree on children’s religious observance and the related lifestyle, because of the different tenets of the religions, and the pressure this puts the children under.

59 The position, in what was, in the then terms, a custody case, was referred to by

Evatt CJ and Fogarty J in the Full Court of the Family Court of Australia in N and N
(1981) FLC 91-111:

“Ordinarily the question of the religious upbringing of children is a matter to be determined by the custodian after the question of custody has been determined and the religious differences of the parents is not a determinant or even a significant factor in a custody case. Otherwise it would involve the Court in the task of passing judgment upon the appropriateness of one form of religious upbringing as distinct from another. …

Only in unusual circumstances will the Court be prepared to consider whether the nature and degree of religious observance of one parent and the proposed religious upbringing of that parent could have such an effect on the welfare of the child that it should assume significance in a custody decision. There are rare cases where a parent's religious upbringing is seen as inimical to the welfare of the child. Comparison may be made with those cases in which the welfare of the child requires a Court to order that the child receive certain medical treatment although that is contrary to the parent's religious beliefs, but in the usual situation there is unlikely to be any clash between a Court's perception of the child's welfare and needs and the religious beliefs and observances of either parent.

Where the children have been accustomed to a particular religious upbringing or lifestyle the question of continuance or change in a

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particular case may be a relevant factor. Whether it is and what weight should be attached to it will obviously vary from case to case. This however is a lifestyle issue rather than a religious issue as such.

60 The parties in this case have agreed that they should have equal shared parental

responsibility for the children, and shared care with the children living for more time
with their mother because of their father’s work commitments.

61 I do not accept that it is in the best interests of the children to prevent either

party from instructing the children in any religious belief or faith or taking the children to any religious meeting, church or gathering associated with any religious belief. I do not regard it as appropriate to prevent the father from involving the children in the [faith], when this was the faith of both parties during the marriage, and when the children have always observed the faith. I also accept that it is not appropriate to prevent the mother from observing her own religion and lifestyle while the children are with her. To do anything else would, I consider, be unfair on one parent, and quite unworkable when the parties have substantially shared care, for example, in requiring the children to be cared for by others if the father observes religious practices during his time with the children, which he would probably do.

62 While it is likely that the children will be placed under pressure by each parent

to accept their beliefs, and continue in their respective religious practices, I would hope, and expect, that both children will not be subjected to the conflict between the parents over this issue, which has placed them under considerable pressure already, and that each parent will not denigrate or criticise the practices of the other parent. Orders have already been made, by consent, preventing the parties from doing this. Presumably, the parties would not have agreed to those orders unless they accepted they were appropriate.

63 I agree entirely with the submission of the independent children’s lawyer

regarding observance of school events in relation to birthdays and Christmas. To this, I consider should be added Anzac Day and civic events. [Some religions] are not permitted to salute the flag of any nation, recite the pledge of allegiance, stand for, or sing, the national anthem, run for public office, vote, or serve in the armed forces. While I can understand the father’s concern about this, the fact remains that the large majority of the children in any class are not likely to be used to celebrating birthdays, and perhaps less in our multi cultural society, celebrating Christmas. I understand that such practices in schools are fairly low key and infrequent, and I accept that it would not be in the best interest of these children to have to be segregated from their class for the fairly short periods when these events occur, as they may then feel they are isolated, as compared to just being different.

64 It is inevitable that as the children grow up, they will make their own decisions

about their religious practices and then both parties will have to accept this, or have their relationship with their children seriously affected. The father’s position is he would still retain a relationship with his children if they are not of [the religion], but this remains to be seen. I was reassured by the father’s evidence that the children would not be subject to criticism in [ their religious] community for possibly not observing the faith while with their mother and that this is not an unusual situation for children to be in.

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65 I have therefore decided that I am not prepared to make the order as proposed by

the wife in para 19 of the Amended Minute of Proposed Orders. Nor am I prepared to make an order preventing the children spending time with their father on the [festival day]. The father’s evidence is that this was the only festival celebrated annually, [on the same day each year]. I can see no reason why the children should not be with their father at this time. Since this festival this year is apparently on [the date], I have extended the agreed time the children are to spend with their father over from the Friday this year, subject to any other submissions.

Time for handover

66 The father’s position in this regard was that on days that he is working, he is able

to sleep during the day and so he would be available and well able to care for the children from the late afternoon of the day he finishes work on his roster, rather than from 9:00 am the next morning. The mother wishes to maximise the time the children spend with her. She is prepared to accept the next morning start on weekends, but not during the school week. The single expert’s recommendation was for the children to spend equal time with each parent and the children continue to live together. Even with the slightly extended time proposed by the father, the children will still spend more than half their time with the mother. I accept that it is the children’s interests to stay with their father from 5:30 pm on the evening of the day he finishes work, even though they are then separated from their mother and their half sibling for slightly longer. As a slight compromise, the children are to be returned to her at 5:30 pm on the two days in dispute.

Proposed orders

1. The parties permit the children, to celebrate birthdays and Christmas at school and attend Anzac Day and civic events, to the extent that this is done by the general school population.

2.(i)	The father spend time with the children on the [festival day] from 4:00 pm to the commencement of school the following day.
(ii)	In 2008, the children spend from the Friday to 9:00 am Sunday with the father, if the [festival day] is on the Saturday of the Easter weekend.
(iii)	The children spend time with the father from 5:30 pm on the two occasions each five week roster period when the handover period occurs during the school week.
(iv)	On the two occasions each month referred to in the father’s roster where the children are being returned by the father to the mother, the children be returned at 5:30 pm.

3. The applications otherwise be dismissed.

I certify that the preceding [66] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate