Elspeth & Peter 2006 FamCA
A couple with eight children separated when three children were under the age of 18 years. The mother was a fourth generation member of a church that functioned as a closed community. The father left both the church and the marriage. Church members held a strong belief that marital separation should not occur, and that members of the church do not liaise with people who are non-members of the church, as these people are viewed as outsiders or worldly people. The father reported that, due to the mother’s strong religious belief, he could not see his younger children for three years after he left the marriage and the church.
The father obtained an order that the children spend time with him. The mother reported that this order distressed all three children. The father considered that church members then encouraged the children to participate in contact as ordered by the court but not to enjoy the contacts with their father (withhold emotional support). Evidence was given that if people who break rules of the church do not repent then they are ‘withdrawn from’ as others dissociate from the person. The church held a belief that members must separate from people who are impure.
The father applied for his younger children to live with him so that he could show them another side of life. The father understood that if his younger children lived with him, then they would lose their existing friendships in the church community.
The family consultant recommended that requiring the children to live with their father would involve too great a change from their existing lifestyle.
The judge found that placing the children in the care of the father and removing them from the community that had established their self-identity and religious beliefs would not be in the best interests of child.
The judge accepted the mother’s statement that she was unable to positively encourage the children to spend time with their father because of her religious beliefs, and imposed a specific order that the mother not make negative statements about the father (restrained from denigration).
The judge did not accept that the 16 year old who expressed a strong view not to see her father was able to make a mature decision as the child was not free of influence from her mother and members of the church community, and accepted directions from the mother (capacity to decide).
The judge ordered that the children live with the mother and spend time with the father.