Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn help a woman and her ex with a dispute about their baby boy.

QUESTION: I have recently had a beautiful baby boy, and would like to get him circumcised. However, my husband and I split during the pregnancy, and he is adamant that he will not allow the procedure to go ahead, calling it “cruel” and “barbaric”. Who has the right to make this important decision about our son’s health in this circumstance? – Annie, SA

ANSWER: Disputes between parents over medical decisions for their children are common after a relationship breakdown, especially as these decisions are usually based on an individual’s values and beliefs.

Any dispute with your ex-husband about medical decisions for your child is best resolved out of court due to the expense, time and stress often associated with court processes.

Both parents typically have equal parental responsibility, which includes making decisions about a child’s health and medical procedures, unless a court order states otherwise.

It’s not clear if you have any parenting plans or parenting orders in place, or if the court has been involved, so we will only provide general advice and work on the basis that there has been no court order.

It sounds like you and your son’s father each have very strong views on this point and it’s unlikely that you will be able to reach an agreement without the court’s involvement.

Before going to court, the law requires you and your son’s father to first attend mediation or family dispute resolution. You may be able to access services through Legal Aid, Family Relationship Centres or community organisations.

The aim of a mediated process is to agree about the issues in dispute and have a parenting plan or a consent order prepared, signed and lodged with the court.

A parenting plan is a written agreement created by you and your son’s father that is made in the best interests of your son. The document will detail very practical aspects of each of your responsibilities and how decisions will be made about your son.

This plan can include details about living arrangements, education and health care – including a decision about circumcision.

The parenting plan should have a review date to ensure that it is appropriate for your son as he gets older.

A parenting plan is not legally enforceable so if you are able to reach an agreement then you can submit your plan to the Family Court using the Application for Consent Orders form. The details of the plan are then made into a parenting order which is legally enforceable.

If you are unable to reach agreement then you or your son’s father can apply to the Family Court for a parenting order, where a decision will be made by a judge, based on what is in the best interests of your son.

If you end up going down this path you should get legal advice. While you can represent yourself in court, a lawyer can give you advice about the strength of your case and what evidence you need to give you the best opportunity of success.

There are few decided cases in Australia on this issue. In 2014, in a case involving a child in Queensland, a court ordered that neither parent was permitted to have their child circumcised, unless the child expressed a wish to be circumcised – with the child’s wish to be confirmed by a child psychologist.

If you are considering getting this procedure done without your ex-husband’s consent, then we strongly warn you against doing so. In 2002 in Queensland, police charged a father with grievous bodily harm for having his two sons (then aged five and nine) circumcised without the knowledge and against the wishes of their mother.

If you end up applying for court orders to have your son circumcised, and those orders are granted, you will need to have the procedure performed at a private hospital, as cosmetic circumcision for newborn males is currently banned in all Australian public hospitals.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor. If you have a legal question you would like Alison and Jillian to answer, please email stories@news.com.au. Get more from Alison and Jillian on their Facebook page.


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