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Family law legal and precedent issues

Family court judge takes ‘best interests’ consideration into next world

By March 18, 2019November 2nd, 2021No Comments

“His Honour was minded to ensure [the boy] obtained salvation by way of baptism,” so the religious ceremony was ordered to take place, despite nobody actually asking for that order. In a parenting dispute pseudonymised as Lysons & Lysons, the parents had argued over their child’s surname and over who should have sole parental responsibility, though they hadn’t specifically raised the topic of a baptism, and the recent ruling by Judge Vasta was overturned on appeal. But whether baptism is in a child’s best interests in this life or beyond, religion and family law have sometimes been controversial in the courts.

In the Lysons case, the parties appealed the baptism order on two grounds: that it was unconstitutional (against s116 of the Constitution) and therefore invalid. Alternatively, they argued that they hadn’t been given reasonable warning of the possibility of an order for baptism being made, therefore it was procedurally unfair.

On the constitutional issue, a “Notice of Constitutional Matter” was served on the Attorney-General Christian Porter who advised he would intervene.  His response after advice was that s116 of the Constitution does not apply. This is, he argued, because the section doesn’t operate to invalidate orders made by courts, but, rather, to invalidate laws enacted by Parliament.

Instead Porter said it should be asked: Can an order still be unconstitutional then, if it’s enacted under a provision of the Act “for a purpose prohibited by s116”?  To that, the Attorney-General also answered no, saying it wasn’t enacted for a prohibited purpose but “to permit a court to deal with the care and welfare of a child by reference to the best interests of the child as the paramount consideration”.

In the Lysons case, the unconstitutional issue was then deleted and ‘fell away’, but it may well arise again in other cases involving religion and family law. For instance, a case heard in August last year had a judge questioning whether a baptism order would be “beyond the power of the Court”. In that case, there had been an obligation imposed on the mother to participate in a religious observance, namely the baptism of the children”. Again in that case, it was said that s116 of the Constitution could prohibit such an order being made. Then, it was also noted that s116 does encompass legislation “that would empower any other body, including a court or tribunal, to make an order imposing religious observance”. But Porter’s argument that s116 invalidates legislation rather than orders would still seem to cause a roadblock.

In religion and family law cases where a ceremony such as baptism might be in dispute, it seems potentially wiser to appeal such orders on other grounds than Constitutional ones. For example, the Lysons appeal to the baptism order succeeded on the grounds that the parties hadn’t been granted procedural fairness (as they had not been given reasonable warning of the possibility of an order requiring baptism).

You can read the case here.

Do you need help with a family law issue, perhaps involving religion and family law? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

If you are interested in the subject of religion and family law, you might also like to read our blog here.


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