Macri and Macri - [2010] FMCAfam 662

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MACRI & MACRI

[2010] FMCAfam 662

FAMILY LAW – Children – mother’s wish to commit three children to Jewish religion – father not opposed to children attending Jewish and Catholic events but says commitment should be deferred until children are of an age to make informed decision.

Family Law Act 1975, ss.60B, 60CA, 60CC

Paisio and Paisio (1979) FLC ¶90-659
C & B [2007] FMCAfam 539
Y & H [2005] FMCAfam 229
L & O [2005] FMCAfam 223

Applicant:

MR MACRI

Respondent:

MS MACRI

File Number:

DGC 1156 of 2010

Judgment of:

McGuire FM

Hearing date:

24 May 2010

Date of Last Submission:

24 May 2010

Delivered at:

Dandenong

Delivered on:

1 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr Da Gama

Solicitors for the Applicant:

Vernon Da Gama & Associates Solicitors

Counsel for the Respondent:

Mr Meehan

Solicitors for the Respondent:

Susan Snyder

ORDERS

That the husband and wife have shared parental responsibility for the three children of the marriage [X] born [in] 2000, [Y] born [in] 2001 and [Z] born [in] 2001.
That the children live with the applicant on alternate weeks and the respondent on alternate weeks with the changeover to take place on the Monday of each week through the children’s school save that on non school days the changeover take place at 3.30 pm on Monday.
That the children live with each of the parties for one half of each of the school holidays.
That the children spend their birthdays with the parent with whom the child is living on that day and the other parent be allowed to attend a birthday party for that child.
That on Mother’s Day the children spend time with the mother at times as agreed and in default of agreement from 9.00 am to 5.00 pm.
That on Father’s Day the children spend time with the father at times as agreed and in default of agreement from 9.00 am to 5.00 pm.
That each parent advise the other of all matters relating to the children’s education and all matters relating to any serious medical issues which may arise when the children are in the their respective care.
That each party provide to the other school reports, newsletters and invitations to parent teacher nights and ensure that the other party is registered as an emergency contact at the children’s school.
That the children:
(a)Live with the wife from 6.00 pm on the eve of Passover in each year until 3.30 pm the following day and from 6.00 pm the evening of the Jewish New Year in each year until 3.30 pm the following day, for one night or day during the Purim festival in each year and for the night during the Chanukah festival in each year which coincides with the celebration known as [location omitted].
(b)Live with the husband from 9.00 am on 24 December to 5.00 pm on 26 December in each year and from 9.00 am on Holy Thursday until 9.00…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Macri and Macri

Details

AGLC: Macri and Macri [2010] FMCAfam 662
Case: [2010] FMCAfam 662
Decision Date: 1 July 2010

CaseChat Overview and Summary

The case of Macri and Macri involved a dispute between the parties over the care and upbringing of their three children. The matter was heard in the Family Court of Australia. The key issues before the court were the determination of the arrangements for the children’s living arrangements, school holidays, special occasions, and communication between the children and the non-resident parent. The court was also tasked with ensuring that the children's religious and cultural practices were respected and facilitated.

The court considered the respective roles and wishes of the parents in the upbringing of the children, along with the best interests of the children. The court took into account the need for a balanced arrangement that allowed for the children to maintain a relationship with both parents and to observe their cultural and religious practices. The court also emphasised the importance of avoiding any form of disparagement of either parent by the other, to prevent any potential harm to the children.

In reaching its decision, the court emphasised the importance of shared parental responsibility and ordered that the children live with each parent on an alternating week basis, with specific arrangements for school holidays, special occasions, and religious celebrations. The court also mandated that both parents communicate effectively regarding the children’s education and health, and refrain from speaking negatively about each other in front of the children. Additionally, the court restricted the mother from allowing the children to participate in any Bar Mitzvah or Bat Mitzvah ceremonies without the father's consent.

The court made detailed orders regarding the children's living arrangements, holidays, and communication with both parents, while also ensuring that the children could participate in their respective religious practices. The final orders reflect a balanced approach, aiming to meet the children's needs and to respect the cultural and religious backgrounds of both parents.

Orders

Orders of the court

That the husband and wife have shared parental responsibility for the three children of the marriage [X] born [in] 2000, [Y] born [in] 2001 and [Z] born [in] 2001.

That the children live with the applicant on alternate weeks and the respondent on alternate weeks with the changeover to take place on the Monday of each week through the children’s school save that on non school days the changeover take place at 3.30 pm on Monday.

That the children live with each of the parties for one half of each of the school holidays.

That the children spend their birthdays with the parent with whom the child is living on that day and the other parent be allowed to attend a birthday party for that child.

That on Mother’s Day the children spend time with the mother at times as agreed and in default of agreement from 9.00 am to 5.00 pm.

That on Father’s Day the children spend time with the father at times as agreed and in default of agreement from 9.00 am to 5.00 pm.

That each parent advise the other of all matters relating to the children’s education and all matters relating to any serious medical issues which may arise when the children are in the their respective care.

That each party provide to the other school reports, newsletters and invitations to parent teacher nights and ensure that the other party is registered as an emergency contact at the children’s school.

That the children:

(a) Live with the wife from 6.00 pm on the eve of Passover in each year until 3.30 pm the following day and from 6.00 pm the evening of the Jewish New Year in each year until 3.30 pm the following day, for one night or day during the Purim festival in each year and for the night during the Chanukah festival in each year which coincides with the celebration known as [location omitted].

(b) Live with the husband from 9.00 am on 24 December to 5.00 pm on 26 December in each year and from 9.00 am on Holy Thursday until 9.00 am on Easter Monday in each year.

10.

That without admissions as to the necessity for same each party be restrained from denigrating the other to or in the presence of the children.

11.

That the wife’s time with the children in the week commencing 28 June 2010 conclude at 5.30 pm on 5 July 2010.

12.

That each party permit the children reasonable telephone communication with the other party.

13.

That the mother be and is hereby restrained from causing or allowing the children or any of them to take part in any Bar Mitzvah or Bat Mitzvah without the express written consent of the father.

NOTATION

The Court notes that there is nothing in these orders prohibiting or preventing:

(a) The father taking the children to Catholic Mass or events.

(b) The mother taking the children to the Jewish Synagogue for regular events or observances or partaking in Jewish feasts, festivals and celebrations.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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